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2011

Wisconsin Supreme Court accepts four new cases

Madison, Wisconsin -
December 12, 2011

The Wisconsin Supreme Court has voted to accept four new cases. The Court also acted to deny review in a number of cases. The case numbers, issues, and counties of origin are listed below. Court of Appeals opinions available online for the newly accepted cases are hyperlinked.

2010AP1398-CR State v. RowanThis certification examines whether a condition of extended supervision that allows any law enforcement officer to search the defendant, her home, or her vehicle, for a firearm at any time without probable cause or reasonable suspicion is permissible under the Fourth Amendment and Wis. Const. art. I, § 11.

Some background: At approximately 1:40 a.m. on March 13, 2008, a Prescott police officer observed Tally Ann Rowan's car skid past a stop sign and turn onto a highway without stopping. The officer activated his car's lights and began to follow Rowan, who crashed her vehicle into a stop light pole less than a mile from where she turned onto the highway.

As the officer approached Rowan's vehicle, he smelled intoxicants and observed that Rowan was belligerent and swearing. He then called for assistance from additional officers and firefighters. When Rowan was subsequently informed that the firefighters were going to cut the vehicle's battery cables to reduce the danger, Rowan said, "[G]et the fuck away from there. Where the fuck is my gun? I'm going to shoot you." After Rowan made a reaching motion downward, the police removed her from the vehicle. They subsequently found an unloaded semiautomatic handgun and a box of ammunition in the vehicle.

Rowan was taken to a hospital, where she continued to be very agitated, grabbing at people, spitting at police and hospital employees, and threatening the doctor, other medical staff, and their families.

As officer held Rowan's arm at the hospital, Rowan grabbed the officer's thumb and veryseriously injured the officer's hand, leading to the charge of battery to a police officer.

Rowan was found guilty of all charges after a jury trial. The court sentenced her to one year and two months of initial confinement and three years of extended supervision on a charge of battery to a police officer. She also was also convicted of operating a motor vehicle while under the influence of an intoxicant, resisting or obstructing an officer, and carrying a concealed weapon, but those charges are not at issue in this appeal.

Rowan challenged a condition of extended supervision on the battery sentence in a post-conviction motion. The court denied the motion, but amended the condition to make it slightly narrower than its initial order: "[T]he defendant's person or her residence or her vehicle is subject to search for a firearm at any time by any law enforcement officer without probable cause or reasonable suspicion."

The circuit court ruled that this condition was a "special needs situation" based on the particular facts of this case, including threats to law enforcement and another judge, that required a departure from the normal Fourth Amendment requirements of probable cause and a warrant.

Rowan argues that the condition the court placed on her extended supervision is not reasonable or appropriate. She further argues that there must be some legislative authority to allow any law enforcement officer, as opposed to the community corrections officer assigned to supervise her, to conduct searches.

The state, on the other hand, argues that the circuit court properly exercised itsdiscretion and that the condition is permissible under Samson v. California, 547U.S. 843 (2006). The State also argues that the condition is analogous to theconditions imposed in other Wisconsin cases.

In certifying the case, the Court of Appeals concludes there is no case in Wisconsin that directly addresses the situation presented in this case. From Pierce County.

2010AP2023 The Lamar Co. v. Country Side RestaurantThis case examines the legal process by which the owners of billboards and underlying property are compensated when a billboard site is condemned to make way for a highway project. The state Department of Transportation (DOT) says this is the first case arising from the state's recently revised "unit rule."

Under City of Milwaukee Post No. 2874 VFW v. Redevelopment Authority, 2009 WI 84, 319 Wis. 2d 553, 768 N.W.2d 749, the unit rule determines the fair market value as if only one person owned the property. When the value of the property is determined, the condemnor makes a single payment for the property taken and the payment is then apportioned among the various owners.

Some background: The Lamar Co. owned an outdoor advertising billboard formerly located on premises owned by Country Side Restaurant. Lamar leased space for the billboard from Country Side for $5,400 annually. The premises and sign structure were both condemned by the DOT pursuant to its powers under ch. 32, Stats. In September 2008, the DOT made a jurisdictional offer to purchase to Country Side and Lamar. The following month the DOT issued a $2 million award of damages pursuant to § 32.05(7). The DOT's appraisal set the value of the permitted sign site at $65,000 and the value of the sign at $65,079.

The DOT paid Lamar $75,175 for the in-place value of the sign. It also paid sign removal expenses and relocation expenses, bringing Lamar's total compensation from DOT for the sign to $83,525. Lamar signed a payment schedule summary worksheet reflecting the compensation received and agreed to waive "any right to future claims for damage or loss involving this sign." The waiver said "the reimbursement stated on this worksheet has been reviewed and agreed to by both parties. The sign owner or representative, by signing this document, waives any right to future claims for damages or loss involving the sign."

DOT tendered payment in the amount of $1,985,785.51 to Country Side and Lamar, and the parties agreed to negotiate the award. The negotiation resulted in all proceeds being transferred to Country Side except a disputed amount of $120,000 which was deposited with the clerk of circuit court, pursuant to § 32.05(7)(d), for eventual distribution in accordance with a future court order. Lamar and Country Side could not agree on the distribution of the $120,000 so Lamar filed a claim for partition. Country Side filed a petition for the disbursement of the funds to Country Side.

At a hearing in May 2010, Country Side argued that Vivid, Inc. v. Fiedler, 219 Wis. 2d 764, 580 N.W.2d 644 (1998) controlled and instructed that Lamar's exclusive remedy was under § 84.30(8). The trial court agreed with this analysis and ordered that the $120,000 be disbursed to Country Side. Lamar appealed, and the Court of Appeals affirmed.

The court noted while Lamar agreed with Country Side that § 84.30(8) provides the exclusive remedy for the taking of a take by eminent domain, Lamar argued that § 84.30(8) does not provide the "procedural mechanism by which you obtain that remedy." Instead, Lamar argued § 32.05 provides that procedural mechanism.

Lamar says § 32.05(9)(a)3. expressly provides that "when the owners or parties having an interest in land taken cannot agree on the division of an award, any of such owners or parties of interest may petition the circuit court for the county wherein the property is located for partition of the award monies as provided in s. 820.01."

Lamar notes the summary worksheet contained no reference to a waiver of claims against any third parties, nor did it include a waiver of compensation for Lamar's permit rights, sign location value, leasehold value, or anything else not directly tied to the value of the sign structure itself.

Country Side argues that since Lamar negotiated with DOT and was paid total compensation in excess of $83,000, and because Lamar signed a document waiving future claims for damages or loss involving the sign, Lamar is not entitled to any additional compensation from anyone.

A decision by the Supreme Court could affect billboard and property owners throughout the state. From Winnebago County.

2010AP1474 Best Price Plumbing v. Erie Ins.This breach-of-contract case examines whether an insurance company may satisfy the terms of its contract with a service provider by making a check out to both the provider and the insured, and then sending the check to the insured.

Some background: The dispute began when Erie Insurance Exchange's insured, Willtrim Group LLC, suffered a loss due to frozen pipes at a vacant rental property. There is no dispute that Erie contracted with Best Price Plumbing to provide plumbing services at Willtrim's property. Erie paid Best's invoice with an $8,897 two-party check payable to Willtrim and Best, and sent the check to Willtrim. Willtrim deposited the check into its account. Best never received payment.

Best sued Erie for breach of contract, claiming it was due the amount on its invoice. At trial, a member of the Willtrim LLC, Trevor Trimble, testified that he received a check from Erie for the amount due to Best for plumbing services, made out to Willtrim and Best, and deposited the check into Willtrim's account. He stated he was dissatisfied with the plumbing services. Trimble testified he entrusted the check to a handyman at the job site, who obtained the endorsement of a Best employee.

Best's president and a service manager testified the check was not endorsed by Best and payment terms were not discussed with Erie's adjuster. The adjuster testified that two-party checks are Erie's usual course of business and the usual course in the insurance industry. He said to pay a contractor directly, Erie must be directed to do so by its insured and that he did not receive such direction from Willtrim.

He also stated there was no question that Erie desired to make the payment to Best, and when Trimble requested the two-party check, the job was very near completion.

The verdict asked only whether Erie had entered into a contract for plumbing services with Best and whether it had breached its contract. The jury answered the first question "yes," and the second question, "no."

On motions after verdict, the circuit court acknowledged it would sustain the verdict if any credible evidence supported it. It determined, however, that the issue involved a question of contract law.

The court ruled that when the contract is silent as to terms of payment, the payment is to be made the payee's principal place of business. It was undisputed Erie did not pay Best at its principal place of business; accordingly, the court ruled no credible evidence would support a finding that Erie complied with its contractual obligation to Best.

The Court of Appeals reversed the $14,650.31 judgment against Erie.

It said that when considering a motion to change the jury's answers to the questions on the verdict, a trial court must view the evidence in the light most favorable to the verdict and affirm the verdict if it is supported by any credible evidence.

The Court of Appeals noted the adjuster's testimony about the two-party payment convention in the insurance industry, and that Best had conceded that it did not make "a direct pay request." It concluded it was up to the jury to resolve the conflict, and because there was credible evidence to support the jury's verdict that Erie did not breach its contract with Best, the circuit court was clearly wrong when it changed the jury's answer.

Best contends the circuit court correctly analyzed the issue. It notes that its initial proposal as well as its invoice that were sent to Erie prominently displayed Best's address. It states that Erie had never raised any issue with respect to the quality of Best's work, and it contends that Trimble simply converted the funds due to Best.

Erie contends the only issue is a fact question decided by the jury. It argues the Court of Appeals correctly determined credible evidence supports the jury verdict and that Best ignores the evidence supporting the verdict and offers no valid basis for review under Wis. Stat. § 809.62(1r)(d). From Waukesha County.

2010AP1702 State v. NegreteThis case involves an illegal immigrant now facing deportation proceedings because of a crime he was convicted of 18 years ago. The Supreme Court examines whether the fact a transcript of Abraham C. Negrete's plea hearing is no longer available means that a motion to withdraw his guilty plea, pursuant to Sec. 971.08(2), Stats., cannot be granted.

Some background: On May 28, 1992, Negrete, a citizen of Mexico, pleaded guilty to second-degree sexual assault of a child. Negrete served his sentence. On March 10, 2010, Negrete filed a motion to withdraw his guilty plea from the 1992 assault.

Negrete alleged, by affidavit, that at the time he entered the guilty plea in this case he was not advised of the immigration consequences of his guilty plea, and that he did not know of the immigration consequences of the plea. Negrete tried to obtain the transcript of the plea hearing, but the court reporter is deceased, Negrete's original attorney is deceased, and the judge who heard the case is retired. The trial court found that no transcript is available.

On May 5, 2010, without conducting a hearing, the trial court denied Negrete's motion, noting that, at the time Negrete's plea was entered, the immigration warning was "not mandatory." The trial court ruled that the plea questionnaire signed by Negrete indicated that defense counsel had explained the immigration consequences to Negrete and that Negrete understood. The court ruled that any failure to orally warn Negrete on the record was harmless error. Negrete appealed, and the Court of Appeals affirmed. The State argued that Negrete's claim is barred by laches, asserting that an 18-year delay in seeking to withdraw a plea is unreasonable. Negrete responds that he did not unduly delay because he did not know his claim existed until deportation proceedings began and questions whether a laches defense is reasonable where the current deportation proceeding is apparently based on this 18-year-old conviction.

The Court of Appeals opted to address the merits of Negrete's claims. The court accepted, for the purpose of discussion, that the trial court did not properly advise him on the record, that no transcript can be had, and that deportation is "likely." The Court of Appeals agreed that the alleged failure to inform Negrete would be harmless error if, when he entered his plea, Negrete was aware that deportation could result. The Court of Appeals concluded that Negrete was aware of this consequence, noting that he had initialed a box indicating such, and that Negrete's lawyer had signed the plea/waiver form indicating that the lawyer had discussed and explained the contents of each item with Negrete.

According to the Court of Appeals, therefore, "[t]here is nothing for an evidentiary hearing to resolve" because there is record evidence that Negrete was advised of the potential deportation consequences of the plea.

Negrete suggests that when the transcript is unavailable, the motion must be granted because the court is unable to determine that the warning was given. He also asserts that by the very terms of the statute, a motion to withdraw one's plea is not ripe unless and until he faces immigration proceedings.

The state contends that no relief was warranted because Negrete indicated his understanding by initialing and signing the Request to Enter Plea and Waiver of Rights form.

A decision by the Supreme Court could affect similar cases that may arise throughout the state. From Washington County.

Review denied: The Supreme Court denied review in the following cases. As the state's law-developing court, the Supreme Court exercises its discretion to select for review only those cases that fit certain statutory criteria (see Wis. Stat. § 809.62). Except where indicated, these cases came to the Court via petition for review by the party who lost in the lower court: